JOANN BIANCO v. JENIRINE C SMITH-ROBOTHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2651-09T1

JOANN BIANCO,

Plaintiff-Appellant,

v.

JENIRINE C. SMITH-ROBOTHAM,

Defendant-Respondent.

________________________________________________________________

January 24, 2011

Submitted November 30, 2010 - Decided

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9895-08.

Gill & Chamas, LLC, attorneys for appellant (Michael J. Hanus, on the brief).

Law Offices of William E. Staehle, attorneys for respondent (Kevin D. London, on the brief).

PER CURIAM

Plaintiff Joann Bianco was injured when she was struck by a car driven by a fellow employee, defendant Jenirene C. Smith-Robotham, in her employer's parking lot immediately after they both left work. She appeals from an order granting summary judgment and dismissing her complaint on the grounds that her suit was barred by the Workers' Compensation Act. We affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

The material facts are not in dispute and, giving all favorable inferences to plaintiff, can be summarized as follows:

Both plaintiff and defendant were employed by the Star Ledger in Piscataway on the day of the accident, March 15, 2007. Their shifts, which began at 10:00 p.m., ended early that night, allowing them to leave some time after 4:00 a.m. Plaintiff walked to the parking lot to wait in the car for her sister. On the way, she dropped a book and bent over to pick it up. She took about four more steps before she was struck on her left side by a car driven by defendant. The police report of the accident states that defendant was "rushing to get to her other job located in Jersey City, had not seen [plaintiff] walking until it was too late and quickly stepped on the brakes to stop."

Plaintiff, who was eight months pregnant, was transported to the hospital by ambulance and remained hospitalized for three days. Thereafter, she sought medical treatment for pain in her back, weakness in her leg, and numbness in her foot. At her deposition, plaintiff testified that she was told that she had "bad disks [sic]" and nerve damage. She also stated that she continued to experience constant back pain, numbness in her left leg, and pain in her foot.

In July 2008, plaintiff filed a claim petition for Workers' Compensation benefits from her employer and received benefits. Plaintiff filed the complaint against defendant in November 2008. Defendant filed a motion for summary judgment, arguing that plaintiff's claim was barred by the exclusive remedy and fellow-servant provisions of the Workers' Compensation Act, N.J.S.A. 34:15-8. The trial court granted summary judgment to defendant.

In this appeal, plaintiff argues that this was error; that the fellow-servant rule did not apply because defendant was not acting within the scope of her employment when the accident occurred. She contends that, because defendant was "rushing to get to her other job," she was engaged in personal conduct and was not, therefore, acting within the scope of her employment. We are satisfied that this argument lacks merit.

N.J.S.A. 34:15-8 states:

If an injury or death is compensable under [the Workers' Compensation Act], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

The Act is to be "liberally construed in favor of its applicability . . . not only when the injured person seeks its protection, but [also] when he attempts to have himself excluded from the coverage of the act." Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 25-26 (App. Div. 1988).

The immunity for co-employees from the common law claims of injured co-employees, commonly referred to as the "fellow-servant rule," was created by the amendment of N.J.S.A. 34:15-8 in 1961. L. 1961, c. 2, 1. The immunity provided to the co-employee was only secondary to the amendment's central purpose, "to protect the employer from paying twice, once through compensation and a second time through indemnification of the fellow servant against the injured employee's judgment." Ahammed v. Logandro, 394 N.J. Super. 179, 190 (App. Div. 2007)

(citing Conrad v. Robbi, 341 N.J. Super. 424, 438 (App. Div.) certif. denied, 170 N.J. 210 (2001)).

The mere facts of co-employment and the receipt of workers' compensation benefits will not automatically trigger this bar. Mule v. New Jersey Mfrs. Ins. Co., 356 N.J. Super. 389, 394 (App. Div. 2003).

The critical question is whether both employees were in the course of their employment at the time the accident occurred. If not, the fact that both motorists were [co-employees] is without legal significance.

[Ibid.]

For example, the accident in Mule also occurred between two co-employees in the employer's parking lot. However, both the plaintiff and the tortfeasor had left their employment several hours earlier to attend a company picnic. The plaintiff returned to the workplace to finish his shift, and therefore was plainly "in the course of [his] employment" at the time of the accident. The tortfeasor, however, returned to the workplace only to shower and change his clothes at the gym facilities. Because the tortfeasor's presence at the employer's parking lot "was motivated exclusively by personal reasons[,]" he was not "in the course of [his] employment;" the accident was not an "employment related occurrence;" and, therefore, the bar did not apply. Id. at 396. See also Manole v. Carvellas, 229 N.J. Super. 138, 143 (App. Div. 1988).

Here, both plaintiff and defendant were in the Star Ledger parking lot directly after finishing their work for the day. N.J.S.A. 34:15-36 defines the commencement and termination of employment, in pertinent part, as follows:

Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer . . . .

Pursuant to this definition, both employees were in the course of their employment at the time the accident occurred. See Mule, supra, 356 N.J. Super. at 394. The fact that defendant was purportedly rushing to get to another job does not alter her status while leaving her place of employment any more than any other personal errand an employee might have upon leaving the parking lot, such as picking up a child from daycare. Accordingly, plaintiff's claim was barred by operation of N.J.S.A. 34:15-8, and summary judgment was properly granted.

A